Opinion
No C 02-4951 VRW.
November 29, 2004
ORDER
Harold Laday (plaintiff) appeals from the final decision of the Social Security Administration denying plaintiff social security disability benefits. The court now considers cross motions for summary judgment. Pl Mot (Doc #10); Def Mot (Doc #12). Based upon review of the administrative record, the court DENIES plaintiff's motion and GRANTS defendant's motion.
I A
Plaintiff was forty years old on June 17, 1997, the date of the incident resulting in his disability. Administrative Record ("AR") at 41. Plaintiff has a General Equivalency Diploma (GED), and no further formal education. AR at 42. Plaintiff had worked in construction as a latherer for 18 years before he stopped working on June 17, 1997. AR at 114. As a latherer, plaintiff was required to lift and carry sheetrock, weld, assemble metal stud framing and prepare houses for stucco. AR at 114. Plaintiff's position required him to climb, stoop, kneel, crouch, crawl and carry upwards of 100 pounds. AR at 114.On June 17, 1997, plaintiff fell seven feet when the scaffolding he was standing on gave way. AR at 22. As a result of the fall plaintiff suffered a broken right wrist, spinal injuries and a torn rotator cuff in his right shoulder. Id. Initially, examining physicians failed to diagnose the rotator cuff injury. On January 20, 1998, Dr Stuart London discovered the rotator cuff tear through Magnetic Resonance Imaging. Id. On February 23, 1998, Dr Robert Steiner, an orthopedic surgeon, performed surgery to repair plaintiff's rotator cuff injury. Id. Dr Steiner remained plaintiff's primary physician after the surgery and issued periodic progress reports regarding the plaintiff's recovery. See AR at 266-294.
In a report dated September 18, 1998, Dr Steiner wrote that plaintiff was physically able to participate in vocational rehabilitation (VR) services. AR at 274. But plaintiff chose to delay VR until he could improve his reading and writing skills. AR at 272.
Plaintiff continued treatment with Dr Steiner following the September 18, 1998 report. In a report dated February 23, 1999, one year after the surgery, Dr Steiner reported, "[plaintiff] continues to be disabled following the effects of the 6/17/97 injury." AR at 384. In May 1999 Dr Steiner referred to plaintiff as "totally disabled" and reported that delaying VR further is "reasonable." AR at 382, 400. On June 29, 1999, Dr Steiner asserted that plaintiff still required medical attention and needed to qualify for VR. AR at 398. In August 1999 Dr Steiner again reported, "[plaintiff] continues to be temporarily, totally disabled * * *." AR at 390. On November 9, 1999, and January 11, 2000, Dr Steiner instructed plaintiff to remain off work. AR at 387, 402. In all, Dr Steiner issued twenty-seven progress reports following the surgery. AR at 264-293, 382-402. Seventeen of Dr Steiner's progress reports were subsequent to the September 18, 1998, report. AR at 264-273, 382-402.
In addition to receiving treatment for his physical injuries, plaintiff was being treated for an "adjustment disorder with depressed mood." AR at 341-42. In regards to plaintiff's psychological impairments, at least five doctors either examined the plaintiff or reviewed his file. Opinions regarding the extent of plaintiff's mental disabilities conflict.
On January 3, 2000, Helena Weil, PhD (Weil) opined that plaintiff was unable to enter the work force due to his psychological limitations. AR at 370. Conversely, Dr Ronald Bortman, MD and Dr Cecilia Hardey, PhD both concluded that plaintiff's psychological disorders should not prevent him from entering the work force. AR at 343, 357-362.
Finally, plaintiff was diagnosed with a learning disability. While the exact nature of the disability is unclear, its impact was that, according to an evaluation conducted in October 1998, plaintiff was only able to read, write and do math at approximately the fifth grade level. AR at 30, 272.
B
On November 12, 1998, plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act ("the Act"). AR at 105. On March 1, 1999, plaintiff's application was denied. On May 27, 1999, plaintiff's request for reconsideration was also denied. AR at 83, 88. On July 2, 1999, plaintiff requested a hearing to review the decision denying him benefits. AR at 92.
On January 27, 2000, plaintiff's case came on for hearing before an Administrative Law Judge ("ALJ"). Plaintiff testified that he was disabled due to shoulder and back pain as well as depression and a learning disability. AR at 44-51. On February 22, 2000, the ALJ granted benefits to plaintiff for the period of June 17, 1997 through September 18, 1998. The ALJ determined that plaintiff's disability ceased on September 18, 1998, and therefore benefits terminated on that date. This decision was based on the evidence presented at the hearing, including the reports from Dr Steiner, the non-examining medical experts, plaintiff's testimony and other medical records. AR at 20-31. The ALJ relied heavily on Dr Steiner's progress reports. AR at 22. Specifically, the ALJ found Dr Steiner's September 18, 1998, report to be proof of medical progress, and the absence of objective evidence of injury in his subsequent reports demonstrated plaintiff's lack of credibility in regards to his claims of injury after September 18, 1998. AR at 31.
Evaluating the evidence, the ALJ conducted two sequential evaluations, one for the period preceding September 18, 1998, and one for the following period. AR at 22-29. To determine whether plaintiff was entitled to benefits, the ALJ conducted a five-step sequential evaluation of plaintiff's disability set forth in Social Security Regulations, which considered the following questions: (1) whether plaintiff was currently engaged in substantial activity; (2) whether plaintiff had a severe impairment or a combination of impairments; (3) if plaintiff had a severe impairment, whether plaintiff had a condition which met or equaled the conditions outlined in the Listing of Impairments, 20 CFR § 404, Pt 404, Subpt P, App 1; (4) if plaintiff did not have such a condition, whether plaintiff was capable of performing his past work; and (5) whether plaintiff had the residual functioning capacity to perform any other work. 20 CFR § 404.1520.
Applying the five-step sequential evaluation to the evidence presented at hearing, the ALJ specifically found that: (1) plaintiff met the nondisability requirements for a period of disability and had not engaged in substantial gainful activity since June 17, 1997; (2) plaintiff had impairments or a combination of impairments considered severe; (3) none of plaintiff's conditions was equal to any of the conditions outlined in the Listing of Impairments; (4) plaintiff's allegations regarding his limitations during the period prior to September 18, 1997, were credible; (5) plaintiff had the residual functional capacity for a narrow range of sedentary work and contrary opinions of the state agency reviewing physicians were not supported by the medical evidence; (6) based on plaintiff's residual functional capacity, plaintiff could not perform his past relevant work as a latherer; and (7) plaintiff was disabled as defined in the Act for the period of June 17, 1997, through September 18, 1998. AR at 22-24.
To determine when plaintiff no longer qualified for benefits, the ALJ applied another sequential evaluation to the period following September 18, 1998, which contemplated the following questions: (1) whether plaintiff was engaging in substantial gainful activity; (2) whether plaintiff had a severe impairment or a combination of impairments; (3) whether there had been any medical improvement of plaintiff's impairment as defined by 20 CFR § 404.1594(b)(1); (4) if there had been medical improvement, whether it was related to plaintiff's ability to work; (5) if medical improvement had not occurred, whether any of the exceptions set forth in 20 CFR § 404.1594(d) applied; (6) if medical improvement was shown to be related to plaintiff's ability to work, whether plaintiff's combined impairments were severe; and (7) whether plaintiff was capable of returning to work he had done in the past, or in the alternative, whether plaintiff could do other work. 20 CFR § 404.1594(f).
Applying this sequential analysis the ALJ found: (1) plaintiff had not engaged in substantial gainful activity; (2) plaintiff had severe impairments; (3) as of Dr Steiner's September 18, 1998, report recommending the plaintiff for vocational rehabilitation, the plaintiff had medically improved; (4) the medical improvement was related to plaintiff's ability to work; (5) plaintiff's depression was not severe; (6) plaintiff's current severe injuries included his lower back, right shoulder, rotator cuff and a learning disability; (7) plaintiff could stand for up to six hours a day, was able to sit for periods longer than an hour and, therefore, had the residual capacity for light work; (8) plaintiff's claims of pain after September 18 were not credible because they were not supported by objective evidence; and (9) though the plaintiff could not return to his previous line of work he was capable of performing a "significant range of light exertional work," and was therefore not disabled within the meaning of the Social Security Act and regulations. AR at 24-29.
Ultimately, the ALJ determined that, while plaintiff had the severe impairments of "a resolving low back and right shoulder injuries, status post rotator cuff surgery and a learning disability," plaintiff was able to perform relevant work based on his residual functional capacity to lift and/or carry twenty-five pounds occasionally and ten pounds frequently, stand for two hours at a time up to a total of six hours a day. AR at 30. Finally, the ALJ, relying on testimony of the vocational expert ("VE") present at the hearing, found that there was a significant number of locally available jobs that plaintiff could perform. Id.
On March 1, 2000, the ALJ refused plaintiff's request to re-open the decision. AR at 12. On April 12, 2000, plaintiff appealed to the Social Security Administration's ("SSA") Appeals Council. AR at 8. On August 9, 2002, the Appeals Council denied plaintiff's request for review, and the ALJ's decision became final. AR 5.
On October 11, 2002, plaintiff commenced the instant action for judicial review of the final decision. Compl (Doc #1). In his complaint, plaintiff asserts that his disability did not cease on September 18, 1998. AR at 8. Plaintiff alleges that he is disabled and unable to work because of back and shoulder pain and limitations, as well as depressive features and a learning disability. Pl Mot (Doc #10). Plaintiff contends that the final decision of the ALJ is in error because the ALJ's decision is not supported by the record. Id.
II
The court's jurisdiction is limited to determining whether the SSA's denial of benefits is supported by substantial evidence in the administrative record. 42 USC § 405(g). A district court may overturn a decision to deny benefits only if the decision is not supported by substantial evidence or if the decision is based on legal error. See Andrews v. Shalala, 53 F3d 1035, 1039 (9th Cir 1995); Magallanes v. Bowen, 881 F2d 747, 750 (9th Cir 1989). The Ninth Circuit defines "substantial evidence" as "more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews, 53 F3d at 1039. A determination that the ALJ's findings are supported by "substantial evidence" must be based on the whole administrative record. Reddick v. Chater, 157 F3d 715, 720 (9th Cir 1998). Determinations of credibility, resolution of conflicts in medical testimony and all other ambiguities are to be resolved by the ALJ. See Magallanes, 881 F2d at 750. The decision of the ALJ will be upheld if the evidence is "susceptible to more than one rational interpretation." Andrews, 53 F3d at 1040.
III A
The Act provides that certain individuals who are disabled shall receive disability benefits. 42 USC § 423(a)(1)(D). "Disability" is defined as the "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 USC § 423(d)(2)(A). An individual will be found disabled if his impairments are such "that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy * * *." Id.
B
Plaintiff contends that his disability did not end on September 18, 1998, and that there is not substantial evidence supporting the ALJ's conclusion that it did. Pl Mot (Doc #10). The court must weigh both the evidence that supports the ALJ's decision and the evidence detracting from it when deciding whether the decision is supported by substantial evidence. Reddick, 157 F3d at 720. Plaintiff presents two arguments: (1) the ALJ did not fully factor in plaintiff's depression when determining whether plaintiff was disabled and (2) the ALJ improperly discounted the opinions of Dr Steiner, plaintiff's treating physician. Pl Mot (Doc #10). The court considers these arguments in turn.
1
Plaintiff first argues that the ALJ failed to examine his disabilities as a whole, instead fragmenting them into their individual parts. Pl Mot (Doc #10). Plaintiff contends that his physical injuries in conjunction with his mental impairments have left him with no realistic job opportunities. Specifically, plaintiff asserts that the ALJ did not fully account for plaintiff's mental impairment. The court disagrees.
The ALJ considered three disabilities in his determination: plaintiff's (1) depression, (2) physical ailments, and (3) learning disability. AR at 26-27. He came to the conclusion that plaintiff's depression played no role in his ability to work and plaintiff's physical ailments in conjunction with his learning disability still left plaintiff with a residual functional capacity that included a significant number of locally available jobs. AR at 27-30.
The ALJ did not dispute that plaintiff was depressed, but concluded that the depression would not prevent plaintiff from working. AR at 27. In a report dated January 4, 1999, Dr Hardey concluded, "[plaintiff] did not appear to [have] any organic mental problems that would preclude him from functioning in the world of work, nor does his depression appear to be at a level that would preclude him from functioning in the world of work." AR at 362. Dr Bortman opined, "I do not expect any lasting psychiatric problems." AR at 343. Dr Bortman further stated that plaintiff's "psychiatric status would not prevent him from engaging in any activities geared towards his rehabilitation." Id. Furthermore, the state agency psychiatrist that reviewed the file found no medically determinable impairment. AR at 365.
The ALJ explicitly discounted Dr Weil's opinion because she provided no factual basis to support her assertions. AR at 27. Dr Weil's opinions routinely stated, without offering examples, that plaintiff was irritable, angry and depressed, and routinely recommended further therapy. AR at 370-380. Dr Bortman's report, by contrast, contained many specifics drawn from the facts of plaintiff's life, such as his relationship with his girlfriend, his lack of any prior psychiatric impairment, his hopefulness about the future and the role of his injuries in his depression. AR at 342-343. Similarly, Dr Hardey's report cites specific tests and the plaintiff's relative score in each of those tests. AR at 361. Dr Hardey performed various IQ, memory and neuropsychological screening tests and plaintiff performed within the average range on all of them. Id at 361-362. The ALJ properly discounted the findings of Dr Weil. Magallanes, 881 F2d at 751 ("The ALJ need not accept a treating physician's recommendation which is brief and conclusory with little in the way of clinical findings to support its conclusion").
Plaintiff also relies on a report by Gerald Belchick, PhD, a rehabilitation consultant employed by plaintiff after the hearing. Doc #10 at 17. In his report, Dr Belchick indicated that plaintiff's depression in conjunction with his physical impairments would prevent him from performing all of the jobs suggested by the vocational expert. AR at 14-16. The ALJ, in his order rejecting plaintiff's request to reopen, rejected Dr Belchick's conclusions because they assumed a greater degree of physical and mental handicap than was supported by the record. AR at 11-12. Furthermore, the ALJ chose to accept the recommendations of the VE, who was present at the hearing and had the opportunity to observe plaintiff, over those of Dr Belchick, who only reviewed the record. AR at 12. The ALJ specifically noted that Dr Belchick did not critically address Dr Weil's reports, nor did he specifically cover the period following the September 18 progress report; instead, he relied heavily on reports made during the period the ALJ found plaintiff to be disabled. Id. The ALJ's decision to discount the recommendation of Dr Belchick is entitled to deference. See Magallanes, 881 F2d at 750 (The ALJ is responsible for resolving conflicts in testimony).
Plaintiff's contention that he can not work any of the jobs suggested by the VE due to his depression does not conform with the ALJ's adequately-supported findings. Furthermore, the ALJ's determination that plaintiff's depression should not be a factor in determining plaintiff's residual functional capacity is well-supported by the reports of Drs Hardey and Bortman.
The ALJ's findings of physical limitations are also supported by the record. Specifically, the ALJ found that plaintiff can lift ten pounds frequently with a maximum of twenty-five pounds, can stand for six hours a day and can sit for more than an hour. AR at 26, 30. Dr Steiner reported in July and November 1998 that plaintiff is capable of carrying up to twenty-five pounds. AR at 270, 280. Nothing in the record contradicts this finding.
Dr Steiner's November 1998 report stating that plaintiff could carry up to twenty-five pounds was made in response to a questionnaire requesting information about plaintiff's limitations. AR at 271. Despite specific questions regarding restraints on plaintiff's ability to stand or sit, Dr Steiner only indicated a limit on plaintiff's ability to lift and carry more than 25 pounds. AR at 270, 271. Indeed, the record contains no statement by Dr Steiner that plaintiff was ever unable to stand or sit for any period of time. The lack of restrictions and objective findings by doctors led the ALJ to discredit plaintiff's claims of pain. AR at 24. Furthermore, even if plaintiff's claims of back pain were true, the VE concluded that a significant number of jobs would be available to plaintiff even if he did need to change positions every forty-five minutes. AR at 74. The only mention in the record of plaintiff's ability to sit or stand actually states that plaintiff could do either for about six hours in an eight-hour work day. AR at 351. In sum, there is substantial evidence to support the ALJ's findings that plaintiff can stand for six hours a day and sit for significant periods.
Finally, while the administrative record contains little documentation of plaintiff's learning disability, there appears to be no dispute that plaintiff's ability to read, write and do math is at the fourth or fifth grade level. AR at 23. The ALJ determined that plaintiff's learning disability was "severe," AR at 26, but presented the VE with a hypothetical that accurately portrayed these restrictions. AR at 71-72. As shown above, the ALJ lays out substantial evidence to support his decision that plaintiff's depression should not factor into his residual functional capacity. After considering plaintiff's physical limitations in conjunction with his learning disability, the VE determined that a significant number of jobs were available to plaintiff. Id. Accordingly, the court is persuaded that the ALJ considered plaintiff's disabilities in conjunction with each other when determining that plaintiff's disability had ceased by September 18, 1998.
2
Plaintiff further argues that the ALJ did not give proper weight to Dr Steiner's reports after the September 18, 1998, progress report. The ALJ has the authority to disregard a treating physician's opinion. Magallanes, 881 F2d at 751. When medical opinions are inconclusive, the ALJ may resolve any conflicts. Id.
Despite clearing plaintiff for VR, nearly all of Dr Steiner's progress reports subsequent to September 18, 1998, stated that plaintiff was disabled. AR at 382-402. In most of his reports after September 18, 1998, Dr Steiner noted that plaintiff was not in VR and repeatedly expressed his hopes that plaintiff would soon be able to participate in VR. Id. As recently as January 2000, Dr Steiner instructed plaintiff to refrain from work. AR at 387.
The ALJ discounted Dr Steiner's reports that stated plaintiff was disabled by concluding:
Although Dr Steiner does use the words `temporarily totally disabled' after his November 9, 1998, evaluation I believe this is in a context of being incapable to perform his prior work or, possibly to the extent that Dr Steiner might have mistakenly believed his appraisal resulted in no jobs the [plaintiff] was able to perform.
AR at 26.
A review of Dr Steiner's progress reports shows that the record supports the ALJ's conclusion.
Dr Steiner's reports discussing plaintiff's unwillingness to participate in VR generally indicated that plaintiff's learning disability, not physical impairment, was the justification. See, e.g., AR at 272 ("Regarding his vocational rehabilitation and retraining, [plaintiff's] reading and writing skills are poor and he wishes to improve these before getting into his formal rehabilitation program"), 394 ("[Plaintiff] is still unreceptive to proceeding with vocational rehabilitation on the basis of his underlying educational skills"). Thus it seems that plaintiff was not participating in VR by choice, not because he was physically unable to participate.
Furthermore, at no point did Dr Steiner restrict the amount of time plaintiff may stand in a given day. While Dr Steiner did recognize that plaintiff was complaining of back pain, he presented no objective medical findings of a severe back injury or specific limitations resulting from the back pain. AR at 387. Finally, Dr Steiner opined that plaintiff could lift or carry ten pounds frequently, up to a maximum of twenty-five pounds. AR at 270. Dr Steiner never retracted this assertion.
Therefore, the ALJ was confronted with seemingly inconsistent opinions from the same doctor. On the one hand, Dr Steiner refers to plaintiff as "totally disabled," while on the other hand he consistently refused to impose a specific limitation on plaintiff's ability to sit or stand and allowed that plaintiff could carry as much as twenty-five pounds.
The ALJ fairly resolved seemingly contradictory reports from the same doctor. Supporting this conclusion are the reports instructing plaintiff to remain off work. The recommendation to remain off work is one of three boxes the doctor could check. The other two choices seem to contemplate returning to work at the patient's former position, not a hypothetical new job reflecting plaintiff's changed abilities. See AR 387, 402. Additionally, the November 9, 1999, report asserts that plaintiff should remain off work until VR is complete. AR at 402. Dr Steiner might have incorrectly assumed that plaintiff could not work until he completed VR, whereas, plaintiff was free to return to work and was no longer "disabled" within the meaning of the Social Security Act when his residual functional capacity allowed him to perform any job present in significant numbers in the regional or national economy. 20 CFR § 404.1594(f)(8). Based on the physical limitations set out by Dr Steiner, the VE found a number of jobs plaintiff was able to perform. As stated above, plaintiff's educational limitation was the sole reason he resisted entering VR and Dr Steiner's previous physical clearance remained valid. Therefore, the ALJ did not ignore Dr Steiner's evidence, but rather interpreted its various conclusions so as to reconcile them with each other and with other evidence in the record. UnderMagallanes, 881 F2d at 751, the ALJ has discretion to do so and there is no ground for this court to disturb that exercise of discretion.
IV
For the foregoing reasons, the court affirms the decision of the Social Security Administration. Accordingly, the court DENIES plaintiff's motion for summary judgment (Doc # 12) and GRANTS defendant's motion for summary judgment (Doc # 16).IT IS SO ORDERED.